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Proving Consent under CASL: CRTC Issues Enforcement Advisory Notice

August 09, 2016

The Canadian Radio-television and Telecommunications Commission (“CTRC”) has issued an Enforcement Advisory notice directed to businesses and individuals that send commercial electronic messages (“CEMs”) as part of their commercial activities. Notably, the sender of CEMs must have the consent of the recipient to send them a message, or else the message is considered spam. Section 13 of the federal anti-spam legislation (“CASL”) puts the onus on the sender of CEMs to prove that they have the proper consent, either explicitly or implicitly, to send the message. However, the CRTC has observed that some businesses and individuals are unable to prove such a thing.

Accordingly, the CRTC issued this Enforcement Advisory to remind relevant parties of the requirements pertaining to record-keeping in order to comply with section 13 of CASL. The Advisory reads, in part:

Senders of commercial electronic message should consider keeping a hard copy or an electronic record of, among others:

all evidence of express and implied consent (e.g. audio recordings, copies of signed consent forms, completed electronic forms) from consumers who agree to receive CEMs

documented methods through which consent was collected

policies and procedures regarding CASL compliance

all unsubscribe requests and resulting actions

The CRTC further stated that these types of practices can assist the sender: